Citation Nr: 1752817 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-20 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic bronchitis. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2012. A transcript of that proceeding has been associated with the claims file. This matter was remanded in June 2014, February 2015, and March 2017 for additional development. FINDING OF FACT A chronic bronchitis disability was not manifest in service or within one year of separation, and is unrelated to service. CONCLUSION OF LAW The criteria for service connection for a chronic bronchitis disability are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify VA's duty to notify was satisfied by letter in April 2008. Neither the Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Duty to Assist VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA outpatient treatment records, and private treatment records to the extent they are available. Pursuant to the March 2017 Board remand, the Veteran was afforded a VA examination for his chronic bronchitis. The medical opinion referenced previous treatment records and addressed the Veteran's lay statements concerning his chronic bronchitis. The RO then readjudicated the Veteran's claim in a June 2017 Supplemental Statement of the Case (SSOC). The Board finds that the RO substantially complied with the 2017 remand directives, to the extent possible, and no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Veteran has not identified any additional evidence pertinent to the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. The Merits of the Service Connection Claim The Veteran asserts that he is entitled to service connection for his chronic bronchitis. Specifically, he contends that he has suffered from and has been treated for chronic bronchitis since his separation from service. See August 2010 Statement in Support of Claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records are silent for any treatment or diagnosis of chronic bronchitis. In July 1961, treatment records from boot camp noted that the Veteran had an upper respiratory infection and was diagnosed with acute bronchitis. X-rays taken at the time revealed bronchopneumonia. By late July 1961, records noted that the Veteran had responded well to penicillin, tetracycline and supportive therapy, and x-rays showed the bronchopneumonia had resolved. An August 1961 service treatment record noted that the Veteran was hospitalized for typical rubella rash with mild fever, during which time his lungs were noted as clear. An abstract of service and medical history indicated that the Veteran was hospitalized for approximately three weeks in July 1961 for acute bronchitis and otitis media and for approximately six days in August 1961 for rubella. September 1961 and December 1961 Reports of Medical History indicated that the Veteran had bronchitis in boot camp, but noted that the Veteran stated he was currently in "good" and "excellent" health. Corresponding September 1961 and December 1961 Reports of Medical Examination revealed that the Veteran was clinically evaluated as normal; specifically, his lungs and chest. Subsequent to enlistment, the Veteran's service treatment records note complaints of colds and fevers, but do not contain complaints of, diagnoses of, or treatment for chronic bronchitis. See March 1963, July 1963, and May 1964 Service Treatment Records. The Veteran's December 1964 Report of Medical Examination upon separation from service clinically evaluated his lungs and chest as normal. The Board notes that the Veteran contends that he was treated for chronic bronchitis by private physicians after service; however, due to the closure of these practices, records are no longer available. Post-service treatment records beginning in 1990 reveal complaints of and treatment for chronic bronchitis. A May 1990 VA treatment record noted that the Veteran stated he had suffered from chronic bronchitis for 30 years. In a July 1990 VA treatment record, the Veteran noted that he had a history of chronic bronchitis that was under control at the time. A subsequent July 1990 VA treatment record noted a diagnosis of chronic bronchitis. In a February 2007 VA treatment record, the Veteran reported recurring bronchitis four times a year and that he had been on a regimen of prophylactic antibiotics. VA treatment records also reveal requests for and renewal of prescriptions to treat chronic bronchitis. See March 2008, November 2010, July 2911, and January 2012 VA Treatment Records. In a February 2011 hearing with a Decision Review Officer (DRO), the Veteran testified that he did not have any problems with bronchitis prior to service. He testified that he had continuous treatment for chronic bronchitis from service up until the present time. The Veteran stated that he was treated by private physicians following service; however, most of the practices had closed and the treatment records were not available. The Veteran was afforded a VA examination in April 2011. The examiner reviewed the record, to include the Veteran's service treatment records and post-service treatment records, and his lay statements concerning the onset and continuity of his chronic bronchitis. The examiner concluded that the Veteran had chronic bronchitis associated with mild restrictive lung disease confirmed by pulmonary function testing. She determined that his chronic bronchitis, or any other chronic lung disability, was less likely than not due to or aggravated by active duty service. The examiner reasoned that service treatment records did not reveal any evidence that the Veteran's chronic bronchitis existed or began in service. She explained that all instances of respiratory complaints or conditions in service appeared limited and well-resolved prior to separation from service. She noted that service treatment records revealed a one-time bout with bronchopneumonia that had resolved, and upper respiratory infections that were handled with symptomatic treatment and resolved without any consequence. The examiner noted that while the evidence did show that the Veteran received care in service, treatment records never mentioned chronic bronchitis or any condition suggestive of a chronic lung disability. Further, she pointed to the lack of treatment records documenting the Veteran's chronic bronchitis within one year of separation from service. The examiner noted that while the Veteran had reported receiving treatment for chronic bronchitis from private medical facilities after service, no private treatment records had been provided to support the claim of chronic bronchitis existing since its onset in service. The examiner further noted that it was unclear from VA treatment records how the diagnosis of chronic bronchitis was determined, as the evidence from the electronic claims file did not meet the criteria for a diagnosis of chronic bronchitis. During an August 2012 Board hearing, the Veteran testified that while he was in boot camp, he was hospitalized for three weeks due to bronchitis, returned to duty for a day and a half, and was then hospitalized again for bronchitis and pneumonia. He stated that he was treated multiple times for bronchitis while in service; however, treatment records documented his illness as a cold even when follow-up treatment revealed bronchitis. The Veteran testified that he was never given a medical examination prior to his discharge from service. While the Veteran told his post-service physicians that he had chronic bronchitis in service, he testified that he had never been told by a physician that his condition was due to service. Pursuant to the March 2017 Board remand, the Veteran was afforded another VA examination in May 2017. The VA examiner reviewed the record, to include the Veteran's service treatment records, post-service treatment records, and his assertions of symptoms during and after service. An in-person examination was also performed. The Veteran reported a history of symptoms beginning in service in 1961 when he was hospitalized for seven weeks for a lung condition with pneumonia. He stated that he was diagnosed with chronic bronchitis in the 1970's and his condition had since worsened. The VA examiner confirmed a diagnosis of chronic bronchitis, with no other pertinent physical findings, complications, conditions, signs, or symptoms related to the condition. The VA examiner opined that the Veteran's chronic bronchitis was less likely than not incurred in or caused by an in-service injury, event or illness. The examiner noted pertinent records, to include July 1961service treatment records noting bronchitis in boot camp; VA treatment records from 1990, December 2004, February 2005, March 2006, and June 2009 noting complaints of chronic bronchitis; private treatment records from November 1998, February 1999, and January 2000 and VA treatment records from February 2007 and November 2010 noting recurring bronchitis and renewal of antibiotics. The examiner further noted the April 2011 VA examination and the March 2017 Board remand. The examiner explained that chronic bronchitis was a productive cough that lasted for three months or more per year for at least two years and that most people with chronic bronchitis had chronic obstructive pulmonary disease. While the Veteran gave a history that met the definition of chronic infections lasting more than three months per year for many years, the examiner reasoned that the medical records did not support a diagnosis of chronic bronchitis in service or within a year of separation from service. He concurred with the April 2014 VA examiner that the Veteran's in-service pneumonia and acute respiratory infections were noted to have resolved and it was less likely that they had caused the onset of chronic bronchitis. Having carefully reviewed the evidence pertaining to this claim, the Board has determined that service connection for chronic bronchitis is not warranted. While the evidence reveals that the Veteran has a current chronic bronchitis disability, the most competent and probative evidence of record does not etiologically link this disability to service or any incident therein. Rather, while the April 2011 and May 2017 VA examiners acknowledged in-service incidents of bronchitis, pneumonia and upper respiratory infections, they pointed out that these were acute conditions that were noted to have resolved. Further, the May 2017 examiner explained that chronic bronchitis was a productive cough that lasted for three months or more per year for at least two years and that the evidence did not support an in-service diagnosis of chronic bronchitis or for the year following discharge from service. Both examiners provided reasoned opinions based on a complete review of the Veteran's history, interview and examination, to include the Veteran's reports of symptomatology. Further, continuity of symptomatology is not established for the Veteran's chronic bronchitis. In this regard, the Board observes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has asserted that he has had chronic bronchitis during and since service; however; aside from one acute episode of bronchitis in 1961, such complaints are not reflected in the service treatment records. In fact, when the Veteran was examined on separation in December 1964, his chest and lungs were found to be clinically normal and no symptoms or complaints of chronic bronchitis were noted. The Board notes that while the Veteran asserts he was never given an examination upon his separation from service, the December 1964 Report of Medical Examination displays the Veteran's signature, audiometric findings, blood pressure, and pulse readings, clearly proving otherwise. Thus, unlike Buchanan, this is not a case in which the record is merely silent. Rather, the record reflects that examination of the Veteran's chest and lungs in December 1964 were specifically found to be clinically normal. For this reason, the Board finds this 1964 examination to be far more credible than the Veteran's statements offered years later in support of the current claim. In assigning high probative value to the VA examiners' opinions, the Board notes that they had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted complete examinations. There is no indication that the VA examiners were not fully aware of the Veteran's past history or that the examiners misstated any relevant facts. The Board thus finds the VA examiners' opinions to be of greater probative value than the Veteran's unsupported statements. To the extent that the Veteran asserts that his chronic bronchitis disability is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnosis because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record demonstrates complaints of chronic bronchitis beginning in the 1990's, it does not contain reliable evidence that relates this claimed disability to any incident of service. There is no competent evidence of record and no medical opinion of record to support the claim that the Veteran's chronic bronchitis manifested in service or the year prior to separation. For these reasons, the Board concludes that the claim of entitlement to service connection for chronic bronchitis must be denied as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for chronic bronchitis is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs